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Lackro v. Kao

October 8, 2010


The opinion of the court was delivered by: Eduardo C. Robreno, J.



Plaintiffs Barry Lackro and Beverly Lackro (collectively, "Plaintiffs") brought this medical malpractice action as husband and wife seeking redress for injuries sustained during a brachytherapy procedure administered by Dr. Gary Kao ("Dr. Kao") at the Philadelphia VA Medical Center ("PVAMC"). Dr. Kao, enclosing a certification of employment from the United States Attorney ("U.S. Attorney"), asserts that he was an employee of the United States during the time in question and that his actions were within the scope of his employment with the United States. Consequently, Dr. Kao seeks to be dismissed from Plaintiffs' suit under the Federal Tort Claims Act ("FTCA") as amended by the Westfall Act. The FTCA affords certain federal employees absolute immunity from state law tort claims for which the United States is subject to liability under the FTCA.

Plaintiffs agree that the FTCA provides a basis for dismissing Dr. Kao from the suit. However, Plaintiffs seek limited discovery of ninety days to ensure Dr. Kao was, in fact, an employee of the United States acting within the scope of his employment.

Ultimately, whether Plaintiffs are entitled to the limited discovery they seek turns on when the right to discovery attaches following a U.S. Attorney's certification of employment. Plaintiffs posit the right is absolute. Dr. Kao, on the other hand, asserts that Plaintiffs must proffer specific facts which rebut the U.S. Attorney's certification before proceeding against him and undertaking even limited discovery. Somewhat confusingly, both views find support from controlling precedent in this Circuit. The Court concludes, however, that Dr. Kao's position is governing and that Plaintiffs have not met their burden of demonstrating the requisite specific facts which would entitle them to discovery. Thus, as set forth more fully below, Dr. Kao's motion to dismiss will be granted.


A. Jurisdiction

This Court has original jurisdiction over Plaintiffs' suit because the United States is a defendant and the suit is for medical malpractice. See 28 U.S.C. § 1346(b)(1) ("[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . ."). Plaintiffs aver they have filed an administrative claim with the Department of Veterans Affairs and that six months have elapsed without disposition of the claim. (See Am. Compl. ¶ 1.) The United States admits this allegation. (See Answer ¶ 1.) Therefore, Plaintiffs have exhausted their administrative remedies and are entitled to bring their suit in this forum. See 28 U.S.C. § 2675(a) (action under Section 1346(b)(1) is inappropriate "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency . . . . The failure of an agency to make final disposition of a claim within six months . . . [is] deemed a final denial . . . .").*fn1

B. Facts

Lackro is a "highly decorated United States veteran, having served two tours of duty as a first lieutenant with Army Special Forces in Vietnam during the Vietnam War." (Am. Compl. ¶ 13.) While in Vietnam, Lackro was exposed to Agent Orange. (Id. ¶ 14.) In 2004, Lackro was diagnosed with prostate cancer which Plaintiffs seem to attribute to Lackro's exposure to Agent Orange. (See id. ("In 2004, Mr. Lackro was diagnosed with prostate cancer, a well known result of exposure to Agent Orange.").) Lackro received treatment for his cancer at medical centers owned and operated by the Department of Veterans Affairs and ultimately underwent a prostate brachytherapy procedure at PVAMC on January 10, 2005. (Id. ¶¶ 16, 17.)

Brachytherapy is a procedure "performed by a radiation oncologist, where a number of metal 'seeds' containing radioactive material are surgically implanted into the patient's prostate so as to destroy the cancer cells within the prostate." (Id. ¶ 18.) Plaintiffs allege this treatment was administered and/or approved by Dr. Kao who was "acting as the agent, apparent agent, servant and/or employee of one or more of the entities named as defendants." (Id. ¶ 19.)

Plaintiffs assert that, during the brachytherapy procedure, many of the radioactive seeds were misplaced into healthy tissues. (Id. ¶ 22.) Consequently, Lackro (1) received an inadequate dose of radiation to his prostate; and (2) received an excessive dose of radiation to healthy tissues. (Id. ¶¶ 23, 24.) Plaintiffs allege Lackro's prostate cancer recurred as a direct and proximate result of this error. (Id. ¶ 25.) Plaintiffs also allege that Lackro suffers from medical ailments that are direct and proximate results of the misplacement of the seeds. (Id. ¶ 26.)


In considering a motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), the court must "accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." DeBenedictis v. Merrill Lynch & Co., Inc., 492 F.3d 209, 215 (3d Cir. 2007) (internal citations omitted). In order to withstand a motion to dismiss, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007). This "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (internal citation omitted). Although a plaintiff is entitled to all reasonable inferences from the facts alleged, a plaintiff's legal ...

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